Communication Nº 639/1995
Submitted by: Trevor
Walker and Lawson Richards (represented
by Ms. Veronica Byrne of Mishcon de Reya)
Victim: The authors
State party: Jamaica
Date of communication:
24 and 27 February 1995 (initial submission)
The Human Rights Committee,
established under article 28 of the International Covenant on Civil
and Political Rights,
Meeting on 28 July
1997,
Having concluded
its consideration of communication No.639/1995 submitted to the Human
Rights Committee by Messrs. Trevor Walker and Lawson Richards, under
the Optional Protocol to the International Covenant on Civil and Political
Rights,
Having taken into account
all written information made available to it by the authors of the communication,
their counsel and the State party,
Adopts the following:
Views under article 5, paragraph 4, of the Optional Protocol
1. The authors of the communication
are Lawson Richards and Trevor Walker, two Jamaican nationals who, at
the time of submission, were awaiting execution at St. Catherine's District
Prison, Jamaica. They claim to be victims of violations by Jamaica of
articles 6;7; 9; 10; and 14 of the International Covenant on Civil and
Political Rights. They are represented by the London law firm of Mishcon
de Reya.
The facts as presented
by the authors:
2.1 Mr. Walker was arrested
on 23 June 1980 and Mr. Richards on 26 June 1980. Both authors were
convicted on 17 May 1982 of the murder of one Samuel Anderson and were
sentenced to death. In June 1995 the authors' death sentence
had been commuted to life imprisonment. They filed an application for
leave to appeal against conviction and sentence to the Court of Appeal
of Jamaica on 31 May 1982. At the hearing, counsel for Lawson Richards
abandoned his original grounds of appeal, but sought and was granted
leave to argue supplemental grounds. Counsel for Trevor Walker abandoned
his original grounds of appeal and informed the Court that there was
nothing he could argue. On 24 October 1984, the Court of Appeal dismissed
the authors' appeal. The Judicial Committee of the Privy Council heard
and dismissed the part of the authors' appeal relating to their conviction
on 3 December 1992, but ordered that the authors be granted special
leave to appeal their sentences. On 2 November 1993, the Privy Council
dismissed the appeal because it was being asked to decide the constitutional
question of delay as a court of first instance, rather than as a court
of appeal.
2.2 At the trial, the case
for the prosecution was that, on 20 June 1980, Lawson Richards and Trevor
Walker robbed and murdered Samuel Anderson. The prosecution's primary
evidence was the testimony of one eyewitness to the robbery. The eyewitness
testified at trial that he had been helping the deceased sell meat when
he noticed the authors approach them in a suspicious manner. He then
saw the two men rob the deceased at gunpoint. He was unable to see who
fired the fatal shot, however, because he had been trying to hide from
the two men. The eyewitness further testified that when he attempted
to help the deceased, one of the men fired a shot at him.
2.3 The sole eyewitness
attended identification parades on 22 July 1980. There is
some discrepancy as to when the identification parade took place. The
eyewitness at trial and the deposition of the officer who conducted
the parade both stated that the parade took place on 2 July 1980 (the
deposition was allowed in as evidence because the officer was out of
the country during the trial). The arresting officers, on the other
hand, testified that it took place on 22 July 1980. The witness identified
Mr. Walker at the parade. Mr. Richards stood on parade, but was not
identified by the witness. The witness later identified him in the dock
at the trial itself.
2.4 The prosecution further
relied on caution statements allegedly made to the police by the authors
in which they implicated each other. In a voir dire, the authors
denied that they had made their statements voluntarily and alleged that
they were obtained from them by physical force and threats of physical
force. The police officers who took the statements testified, at trial,
that the statements were given voluntarily, denying that the authors
were beaten, threatened or induced into giving their statements. A Justice
of the Peace also testified that he witnessed the taking of both statements
and that the authors had given the statements voluntarily and had not
shown any signs of having been beaten. Additionally, the prosecution
relied on medical evidence indicating that the cause of death of the
deceased had been shock and haemorrhage caused by the bullet.
2.5 In an unsworn statement
from the dock, Mr. Richards stated that he had been in the area at the
time of the shooting and that he had run away when he heard an explosion.
In addition, he claims that one Delroy Johnson Delroy Johnson
is also referred to as Delroy Jackson and Delroy Campbell in various
parts of the proceedings. had been beaten by the police until he had
made a statement falsely accusing Richards of the murder.
2.6 Mr. Walker made an unsworn
statement from the dock saying that he had been with someone in the
area at the time of the shooting and that they had both run away when
they heard an explosion.
The complaint:
3.1 Counsel argues that
the prosecution's case was based on the identification evidence of an
eyewitness who was unreliable and contradictory. It is asserted that
his identification was based on fleeting, obstructed sightings of the
authors, in very bad lighting conditions, and under extreme fear. In
addition, it is contended that the eyewitness failed to identify Mr.
Richards at the identification parade held one month after the murder
and at the committal proceedings at the Gun Court, yet purported to
identify him in the dock, at trial, held nearly 2 years later.
3.2 Counsel contends that
the unsatisfactory aspects of the trial, in particular, the misdirections
by the judge to the jury as to the voluntariness of the authors' caution
statements, the failure to give proper directions regarding identification
evidence generally and, in the case of Mr. Richards, allowing the dock
identification, amount to a violation of articles 14 paragraphs 1 and
3(c). Failure to argue these defects before the Court of Appeal and
the delay at the Court of Appeal are said to constitute violations of
article 14. It is also asserted that the Court of Appeal erred in accepting
the trial court's rulings and denying the appeal.
3.3 Counsel further contends
that the imposition of the death sentence upon the conclusion of a trial
in which the provisions of the Covenant had been breached, and where
no further appeal is available, constitutes a violation of article 6,
paragraph 2, of the Covenant.
3.4 In addition, counsel
submits that the authors were subjected to a delay of nearly two years
between arrest and trial and a further delay of nearly two and half
years for the Court of Appeal's decision, dismissing their appeal. Additionally,
there was a delay of about 5 years before the Jamaican Council of Human
Rights was informed by the Supreme Court Office of the availability
of the authors' trial transcript and Court of Appeal judgment, documents
necessary in the determination of the possibility of appeal to the Privy
Council. Counsel argues that these delays in the criminal proceedings
against the authors constitute a violation of article 9, paragraphs
3 and 4, of the Covenant.
3.5 It is further asserted
that the uncertainty caused by having been confined to death row since
May 1982 constitutes cruel, inhuman or degrading treatment or punishment,
in violation of article 7 of the Covenant. Reference is made to the
Pratt and Morgan judgment of the Privy Council. Earl
Pratt and Ivan Morgan v. Attorney-General of Jamaica,P.C. Appeal
No. 10 of 1993, judgment delivered on 2 November 1993.
3.6 In addition, counsel
contends that the appalling conditions suffered by detainees in the
death row section of St. Catherine's Prison constitute a further violation
of article 7. Reference is made to reports by Human Rights Watch and
Amnesty International.
3.7 It is further submitted
that Mr. Walker was beaten on 29 May 1990, for which he required five
stitches for one injury, and subjected to other ill-treatment by warders
on death row. On 4 May 1993, Mr. Richard's radio was destroyed by warders
on death row in a deliberate attempt to intimidate and humiliate him.
Counsel contends that the beatings and mistreatment received by the
authors at the hands of the police during questioning and prison authorities
after conviction amount to a violation of article 10, paragraphe 1.
State party's comments
on admissibility and merits:
4.1 In a submission dated
24 October 1995, the State party does not challenge the admissibility
of the communication and in order to expedite examination of the complaint
offers comments on the merits. On the alleged violation of article
7, the State party argues that twelve years on death row do not constitute
cruel and inhuman treatment per se. It further argues that
the five year rule in Pratt and Morgan is not directly applicable
but rather that each case must be examined on its merits, in accordance
with the legal principles applicable to it. It informs the Committee
that the authors' death sentences will be commuted.
4.2 Concerning the alleged
breach of article 9, paragraphs 3 and 4 and article 14, paragraph
3 (c), because of the delay of nearly two years between the authors'
arrest and trial, the nearly 2 and half years between sentence and
dismissal of their appeal by the Court of Appeal, and the lapse of
5 years before the Court of Appeal issued a written judgment, the
State party rejects that these delays constitute excessive delay,
particularly in as much as the two years between arrest and trial
are concerned as during that period a preliminary inquiry was held.
It also rejects that the 2 and a half years is an excessive delay
to hear an appeal. It does concede that five years to produce a written
judgment would be excessive if the delay was attributable to the State
party, but argues that the authors did not make diligent efforts to
obtain the documents and therefore rejects responsibility for the
delay.
4.3 With regard to the
alleged ill-treatment of the authors in pre-trial detention and later
in prison, the State party contends that it has found no evidence
that any ill-treatment occurred and categorically denies that the
incidents referred to took place at all. With respect to Mr. Walker's
complaint of ill-treatment in prison, the State party contends that
this occurred during prison riots of May 1990, and promises to investigate
this allegation. As of 30 June 1997, no information had been received
from the State party in this respect.
4.4 Regarding the alleged
violation of article 14, paragraph 1, the State party argues that
the way in which the judge gave directions to the jury on how to coinsider
identification parade evidence and on how to interpret common design
in murder cases, is a matter which was properly left to the appellate
court.
5.1 On 25 May 1996, counsel
informed the Committee that the authors' death sentences were commuted
following the ruling in Pratt and Morgan and that it follows
that the first complaint under article 7, delay in execution of sentence
is abandoned, as is the request for interim measures of protection
under rule 86. However, she reiterates, that prolonged detention on
death row, over thirteen years for both authors' under conditions
which were no different to those suffered by Pratt and Morgan,
constitutes cruel and inhuman treatment in violation of article 7.
5.2 Counsel contends that
the decision by the Governor-General to substitute the authors' death
sentence with life imprisonment raises issues under articles 9 and
14 of the Covenant. Counsel contends that the procedure by which the
authors remain incarcerated is unclear and unfair and raises the following
contentions:
- "They are not imprisoned
in accordance with a procedure established by law as required by
article 9 (1) in that no court made a decision to deprive them of
their liberty (the sentence of the court was death). Therefore they
are incarcerated in accordance with an unknown, imprecise and secret
administrative procedure.
- They have no entitlement
to take proceedings to challenge their incarceration - either the
very fact of incarceration, or, more importantly, the length of
incarceration- as required by Article 9 (4).
- There is no procedure
for reviewing their sentence (in particular, its length) as required
by Article 14 (5).
- The long years spent
by the Applicants on death row may well not have been taken into
account in determining how long they should serve as a term of imprisonment.
If so, they face double punishment.
- if a "tariff" (the
period of imprisonment the State party considers they should serve
before becoming eligible for release on parole) has been set, they
do not know what that period is, have no information about the material
forming the basis for setting any such tariff, have had no opportunity
to make representations on the tariff and have not been able to challenge
a decision upon the tariff."
5.3 These points have
not been answered by the State party, but the Committee is cognisant
of the Jamaican legislation which governs the authors' case.
5.4 With regard to the
ill-treatment suffered by Mr. Richards counsel notes that the State
party has failed to address the issue. In respect of Mr. Walker, counsel
notes that State party offered to investigate but points out that
the events occurred over six years ago and that Mr. Walker's counsel
wrote to the Parliamentary Ombudsman in October 1992, raising the
same issue, and that the State party had not investigated the matter
by October 1995, when the present communication was first transmitted
to it.
5.5 On the question of
delay in court proceedings, including issuing a written judgement
and a copy of the trial transcript, counsel reiterates that the delays
were attributable to the State party only and notes that the Jamaican
Council for Human Rights wrote to the Registrar of the Court of Appeal
on eight occasions between 23 June 1986 and 17 March 1989 (23
June 1986, 10 June and 8 December 1987, 23 March, 14 April, 14 and
16 November 1988 and 17 March 1989). She notes that the authors have
made diligent efforts to obtain these documents but were unable to
obtain them.
Admissibility consideration
and examination of merits
6.1 Before considering
any claim contained in a communication, the Human Rights Committee
must, in accordance with rule 87 of its rules of procedure, decide
whether or not it is admissible under the Optional Protocol to the
Covenant.
6.2 The Committee observes
that, with the dismissal of the author's petition for special leave
to appeal by the Judicial Committee of the Privy Council on 2 November
1993, the authors have exhausted available domestic remedies. In this
context, it notes that the State party has not raised any objections
to the admissibility of the complaint and has forwarded comments on
the merits. This enables the Committee to consider both the admissibility
and the merits of the present case, pursuant to rule 94, paragraph
1, of the Committee's rules of procedure. Pursuant to rule 94, paragraph
2, of the rules of procedure, the Committee shall not decide on the
merits of a communication without having considered the applicability
of any of the grounds of admissibility referred to in the Optional
Protocol.
6.3 As regards the authors'
allegations of irregularities in the Court proceedings, in particular
improper instructions from the judge to the jury on the evaluation
of the identification evidence, the interpretation of common design
in capital cases, the Committee recalls that it is generally for the
appellate courts of States parties to the Covenant to evaluate the
facts and evidence in any particular case; similarly, it is for the
appellate courts and not for the Committee to review specific instructions
to the jury by the judge in a trial by jury, unless it can be ascertained
that the instructions to the jury were clearly arbitrary or amounted
to a denial of justice, or that the judge manifestly violated his
obligation of impartiality. The authors' allegations do not show that
the judge's instructions suffered from such defects. In this respect,
therefore, the communication is inadmissible as incompatible with
the provisions of the Covenant, pursuant to article 3 of the Optional
Protocol.
6.4 In so far as the authors
claim that their prolonged detention on death row amounted to a violation
of article 7 of the Covenant, the Committee reiterates its prior jurisprudence
that a prolonged detention on death row does not per se constitute
cruel, inhuman or degrading treatment in violation of article 7 of
the Covenant See Committee's Views on communication No.
588/1994 (Errol Johnson v. Jamaica) adopted 22 March 1996., in the
absence of further compelling circumstances. As no such further compelling
circumstances have been adduced, this part of the communication is
inadmissible under article 2 of the Optional Protocol.
6.5 So far as concerns
the claims referred to in paragraph 5.2 above, the Committee notes
that the conviction on 17 May 1982 led to mandatory death sentences
against the authors; but also that these have been commuted by the
Governor-General following the decision of the Privy Council in Pratt
and Morgan. Although that commutation took place in June 1995
it was carried out under the prerogative of mercy and not under the
detailed provisions in the Offences Against the Person (Amendment)
Act 1992 for reclassification of convictions for murder, including,
in cases classified as non-capital murder, a procedure for fixing
a tariff.
6.6 Counsel alleges a
violation of articles 9 and 14 of the Covenant, as she purports that
the authors' death sentences were commuted to life imprisonment by
virtue of an "unknown imprecise and secret administrative procedure".
The material before the Committee shows that the authors' death sentences
were commuted to life imprisonment by the Governor General, who followed
the ratio decidendi in the Pratt and Morgan judgment
delivered on 2nd November 1993 by the Privy Council. The Committee
considers this claim an abuse of the right of submission, under article
3 of the Optional Protocol.
6.7 With regard to the
authors' allegations that they were ill-treated and forced to confess,
the Committee notes that this issue was the subject of a trial within
a trial, to determine whether the authors' statements were admissible
in evidence. In this connection the Committee refers to its prior
jurisprudence and reiterates that it is generally for the courts of
States parties to the Covenant to evaluate facts and evidence in a
particular case; it notes that the Jamaican courts examined the authors'
allegations and found that the statements had not been procured under
duress. In the absence of clear evidence of bias or misconduct by
the judge, the Committee cannot reevaluate the facts and evidence
underlying the judge's findings. Accordingly this part of the communication
is inadmissible as incompatible with the provisions of the Covenant,
pursuant to article 3 of the Optional Protocol.
6.8 In the course of the
authors' continued detention under these life sentences, the Committee
notes that no issue arises on a period set for tariff, or any reasons
for that. If the authors have cause to believe that the State party
has failed, in due time, to provide for a system of reviewing their
eligibility for release on license, or the licensing system or criteria
for adjudication on these issues, it is a matter which should first
be raised in the domestic courts, and these circumstances have not
yet arisen.
7. In the circumstances
of the case the Committee decides that the other claims of the authors'
are admissible and proceeds to an examination of the substance of
those claims in the light of all the information made available to
it by the parties, as required by article 5, paragraph 1, of the Optional
Protocol.
8.1 With regard to the
alleged a violation of article 10, paragraph 1, of the Covenant for
ill-treatment in detention on death row, the Committee notes that
in respect of Mr. Walker's complaint that he was beaten in May of
1990, which required five stitches for his injury, the State party
admitted that these injuries occurred during the prison riots in May
1990 riots and that it would investigate the matter and inform the
Committee. The Committee further notes that 20 months after the communication
was brought to the attention of the State party and over 7 years after
the events, no information has been received to explain the matter.In
the circumstances and in the absence of information from the State
party, the Committee finds that the treatment received by Mr. Walker
on death row constitutes a violation of article 10, paragraph 1, of
the Covenant.
8.2 The authors have argued
that a delay of nearly two years between arrest and trial and a further
delay of 30 months between trial and appeal, was unduly long and constitutes
a violation of articles 9, paragraph 3, and 14, paragraph 3 (c), of
the Covenant. Article 9, paragraph 3, entitles an arrested person
to trial within a reasonable time or to release. The Committee notes
that the arguments forwarded by the State party do not address the
question why the authors, if not released on bail, were not brought
to trial for nearly two years. The Committee is of the view that in
the context of article 9, paragraph 3, and in the absence of any satisfactory
explanation for the delay by the State party, a delay of nearly two
years during which the authors were in detention, is unreasonable
and therefore constitutes a violation of this provision. With respect
to the delay in hearing the authors' appeal and bearing in mind that
this is a capital case, the Committee notes that a delay of 30 months
between the conclusion of the trial and the dismissal of the authors'
appeal is incompatible with the provisions of the Covenant, in the
absence of any explanation from the State party justifying the delay;
the mere affirmation that the delay was not excessive does not suffice.
The Committee accordingly concludes that there has been a violation
of articles 9, paragraph 3 and 14, paragraph 3 (c), of the Covenant.
8.3 The authors claim
a violation of article 14 paragraphs 3 (c) and 5 for the delay of
almost 5 years before the Jamaican Council of Human Rights was informed
by the Supreme Court Office of the availability of the authors' trial
transcript and Court of Appeal judgment. The State party has conceded
that if this delay had been totally attributable to the State party,
this would constitute a violation of the Covenant, but that in the
present case, the authors had made no diligent effort to obtain the
relevant documents. requested. Counsel has submitted, however, that
the Jamaican Council for Human Rights requested such documents on
eight occasions between 23 June 1986 and 17 March 1989. The Committee
considers that, in these circumstances, the authors have made diligent
efforts to obtain the documents and that the delays must be attributed
to the State party. Accordingly, the Committee concludes that there
has been a violation of article 14, paragraphs 3 (c), of the Covenant.
9. The Human Rights Committee,
acting under article 5, paragraph 4, of the Optional Protocol to the
International Covenant on Civil and Political Rights, is of the view
that the facts before it disclose a violation of articles 10, paragraph
1, in respect of Mr. Walker and 14, paragraphs 3 (c), of the Covenant
in respect of both authors.
10. In accordance with
article 2, paragraph 3 (a), of the Covenant, the State party is under
an obligation to provide Messrs. Walker and Richards with an effective
remedy, entailing compensation for the delay in issuing a written
judgment and providing the trial transcripts and in Mr. Walker's case
for the ill-treatment suffered. The State party is under an obligation
to ensure that similar violations do not occur in the future.
11. Bearing in mind that,
by becoming a State party to the Optional Protocol, the State party
has recognized the competence of the Committee to determine whether
there has been a violation of the Covenant or not and that, pursuant
to article 2 of the Covenant, the State party has undertataken to
ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the Covenant and to provide
an effective and enforceable remedy in case a violation has been established,
the Committee wishes to receive from the State party, within 90 days,
information about the measures taken in connection with the Committee's
Views.
_________
*The following members
of the Committee participated in the examination of the present communication:
Mr. Nisuke Ando, Mr. Prafullachandra N. Bhagwati, Mr. Thomas Buergenthal,
Ms. Chritine Chanet, Lord Colville, Ms. Elizabeth Evatt, Ms. Pilar
Gaitan de Pombo, Mr. Eckart Klein, Mr. David Kretzmer, Ms. Cecilia
Medina Quiroga, Mr. Fausto Pocar, Mr. Julio Prado Vallejo, Mr. Martin
Scheinin, Mr. Danilo Türk and Mr. Maxwell Yalden.
[Adopted in English, French
and Spanish, the English text being the original version. Subsequently
to be issued also in Arabic, Chinese and Russian as part of the Committee's
annual report to the General Assembly.]